Hicks v. Selsky

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. Following a tier III disciplinary hearing petitioner, a prison inmate, was found guilty of being under the influence of alcohol. According to the misbehavior report, two correction officers and a nurse observed that petitioner’s breath smelled of alcohol, that petitioner was walking unsteadily, and that he had bloodshot eyes. In our view, the detailed misbehavior report, combined with the hearing testimony, provided substantial evidence to support the determination of petitioner’s guilt (see, Matter of Ross v Goord, 262 AD2d 904). Notably, petitioner’s denial of wrongdoing raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Petitioner’s remaining contentions, including his challenge to the sufficiency of the Hearing Officer’s statement of evidence relied upon, have been examined and found to be unpersuasive. Cardona, P. J., Mercure, Crew III, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.